Byline: Dan Pero, SPECIAL TO THE WASHINGTON TIMES
Former Supreme Court Justice Sandra Day O'Connor made headlines recently by questioning the practice in many states of holding elections for judicial posts. Speaking at Georgetown University Law Center, Justice O'Connor criticized the "politicizing" of judicial elections and bemoaned the increasing amounts of money spent on judicial races. Her former colleague Justice Stephen Breyer was also on hand, voicing concern that elections threaten the "independence" and "reputation" of state courts.
This critique of judicial elections is a familiar one, but what's never explained is why the reputation of state courts suffers from the involvement of the people in the selection of judges.
Judges, after all, are not infallible. They are prone to error or even abuse of power just like other officeholders. In recent times, judges have also shown an alarming propensity to legislate from the bench - to rule on business, social and regulatory questions that touch the lives of millions of Americans but were traditionally considered the domain of elected legislators. The most powerful check - perhaps the only check - on this sort of activism is an informed electorate.
Until recently, the election of judges was mainly a private affair confined only to members of the state's legal and media establishment. Lawyers' groups like State Bar Associations would give judicial candidates a "thumbs up" or "thumbs down." And editorial boards, taking their cue from the Bar, would hand out endorsements.
With voters now starting to notice, many, including Justice O'Connor, want to remove "politics" (meaning the people) from the equation by pushing a plan for governors to choose from a list of candidates proposed by an unelected outside commission accountable to no one. Anyone want to guess who will dominate those commissions? Not small business owners, whose livelihoods are often affected by judicial decisions. Not ordinary citizens who see their communities impacted by judicial activism. It will be made up of lawyers and other elites.
Several states have already adopted variations of this system, and in each case you'll find the deck stacked in favor of lawyers. In Kansas, a majority of commissioners (five out of nine) are selected by the State Bar. Of the seven members of Missouri's Appellate Judicial Commission, three are trial lawyers and a fourth (the current state chief justice) is a member of the Missouri Association of Trial Lawyers. …